Government contractors facing products liability suits may have a number of unique defenses available them, depending on the government’s role in the alleged act or omission giving rise to the plaintiff’s claimed harm. One such defense is the “government contractor defense.” Despite its name, successfully establishing the defense requires proof of more than just a government contract.

Continue Reading The Government Contractor Defense: 10 Things Contractors Need To Know

As most federal contractors know, the standard FAR clauses grant the government the right to default a contractor for delay. These same clauses, however, protect contractors where the delay is “excusable” and involve “unforeseeable causes beyond the control and without the fault or negligence of the Contractor.” Examples listed in the clauses include, among other

The ASBCA’s November 2021 decision in Harry Pepper and Associates, Inc., No. 62038 et al. (Nov. 3, 2021) offers important guidance on the role of live witness testimony in one of the most challenging aspects of differing site conditions claims: proving that the actual site conditions were actually different from those that were expected.

The claims at issue in the case arose from a $36 million task order for the restoration of NASA’s B-2 rocket test stand, which was built in the 1960s as part of the Apollo program and used to test the Saturn V rockets. The restoration was needed so that the B-2 stand can be used to test rocket vehicles for use in NASA’s new moon-launch program, Artemis.

Continue Reading The Role of Live Witness Testimony in Proving Differing Site Conditions Claims

The Court of Federal Claims (CoFC) recently held that an offeror was not obligated to inform the agency of staffing changes, affecting its key personnel, that occurred following its proposal submission. This new CoFC decision conflicts with longstanding GAO precedent.

Key personnel are often a significant part of proposals and can greatly increase or diminish

Imagine as a supplier of medical oxygen cylinders and tanks in your region, you enter into an arrangement with HHS or DHS to provide oxygen to nearby hospital facilities dealing with surges in the COVID-19 pandemic. However, due to the recent dramatic surge in your area and the significant demand for oxygen, the government moved quickly to award you a contract that appears very different from other federal contracts you have previously signed.

Continue Reading Terminations for Convenience Clauses vs. Mutual Termination Clauses: What are the Limits on the Government’s Right to Terminate?

In a previous post, we discussed the need to include a sum certain as part of a CDA claim. This requirement of course is but one of several needed for a CDA claim to be valid and for the Court of Federal Claims and the boards of contract appeals to take jurisdiction. Another equally important requirement is that the claim be certified. Like the sum certain requirement, failing to properly certify a claim has the potential to derail pending litigation, or worse, could even prevent an unwary contractor from asserting the claim altogether.

Continue Reading Perfecting a CDA Claim: Don’t Forget to Certify

If a dispute arises on a federal contract, the Contract Disputes Act requires a contractor to submit a written demand seeking as a matter of right a “sum certain” to the contracting officer as part of the claims process. What exactly is a “sum certain”? It is what it sounds like—contractors must provide an exact dollar amount of the overall damages they are claiming in their CDA claims. In other words, whatever damages the contractor is claiming cannot be qualified in any way. Contractors should never use the words “at least,” “approximately,” “no less than,” or “well over” with their damage figure. Instead, the contractor must provide an exact amount a set damage figure that represents the overall amount being demanded. It is okay if the damage figure is an estimate—even a flat calculation of $100,000—as long as an overall demand is made without any qualifying language.

Continue Reading Perfecting a CDA Claim: Sage Advice for the Sum Certain Requirement

The Contract Disputes Act establishes the formal process for resolving nearly all claims and disputes that arise under federal government contracts. It is the source of the requirement that contractors certify claims in excess of $100,000, the contracting officer’s final decision, and the deadlines for bringing a dispute to the Court of Federal Claims or an agency board of contract appeals.

It is also the source of the federal government’s authority to use mediation and other forms of alternative dispute resolution. Today we review six key things contractors should know about mediating contract claims and disputes at the Armed Services Board of Contract Appeals.

Continue Reading Mediating contract claims and disputes at the ASBCA

On March 31, 2021, in United States ex rel. Felten v. William Beaumont Hospital, No. 20-1002, 2021 WL 1204981 (6th Cir. Mar. 31, 2021), the U.S. Court of Appeals for the Sixth Circuit held that the False Claims Act’s (FCA) anti-retaliation provision protects former employees alleging post-termination retaliation. The decision creates a split with the Tenth Circuit, which held in 2018 in Potts v. Center for Excellence in Higher Education, Inc., 908 F.3d 610 (10th Cir. 2018), that former employees are excluded from the scope of the FCA’s anti-retaliation provision. While current employees are undoubtedly protected under the provision, Felten ultimately leaves the question of whether former employees may recover for post-termination retaliation under the FCA unsettled across all circuits.

Continue Reading Can Former Employees Assert Post-Termination Retaliation Claims Under the False Claims Act?

In today’s world, there is a tendency to believe that everything must be preserved forever. The common belief is that documents, emails, text messages, etc. cannot be deleted because doing so may be viewed as spoliation (i.e., intentionally destroying relevant evidence). A party guilty of spoliation can be sanctioned, which can include an adverse inference that the lost information would have helped the other side. But that does not mean that contractors have to preserve every conceivable piece of information or data under all circumstances. There are key differences between routine document destruction (when done before receiving notice of potential claims or litigation) and spoliation.

Continue Reading The difference between routine document destruction and spoliation